KALIYAMMAL Vs. K. RAMASWAMY

JUDGEMENT

(1.) Plaintiff is the appellant.

(2.) The averments in the plaint are briefly as follows: The suit property which was originally a vacant land was leased in favour of the defendant and one Subramani by the then owner Subramania Gounder, on 15-11-1968 in respect of the front portion. The agreement provided that the defendant and Subramaniam should spend their money in the first instance and put up construction in the same, convenient to them to run a workshop. They have to be reimbursed the cost from the owner Subramania Gounder. The rent was fixed at Rs. 65.00. An advance of Rs. 1,500.00 was paid to the lessor. The rent is to be adjusted towards the costs of construction and at the end of the lease period, if it is found that the cost of the construction is more than the rent for five years, the lessor should pay the excess amount and return the advance. If the costs of construction is found less than the rent for five years, the difference should be adjusted from out of the advance amount and the balance should be paid to the defendant and Subramaniam. The defendant and Subramaniam put up a construction at a cost of Rs. 3,000.00. The lessor Subramaniam had conveyed the entire suit property in favour of the plaintiff by means of a registered sale deed dated 7-4-1973 for Rs. 9500.00 possession of the vacant land on the rear side was also given to the plaintiff. The plaintiff who became the absolute owner of the entire suit property including the construction put up by the defendant, issued a notice to the defendant and Subramaniam informing the sale in here favour. Another notice was also issued by the plaintiff to the defendant and Subramaniam stating that she is ready and willing to act upon the terms of the composite lease agreement dated 15-11-1983. The defendant has sent a false reply. The plaintiff has therefore filed O. S. No. 90/1974 to receive the balance of the amount if any from the plaintiff and deliver possession of the front portion of the suit property. The defendant filed a written statement and contested the same. The suit was dismissed for default since the advocate engaged by her has reported no instructions and the second advocate engaged by her has failed to file Vakalath The plaintiff filed an application to set aside the order of dismissal and it was allowed. The defendant preferred a Revision against the said order to the High Court and the High Court allowed the Revision. Since the revision was allowed, the defendant has trespassed into the vacant site in the rear portion and put up some constructions. The plaintiff filed O. S. No. 1076/1978 for permanent injunction. The defendant preferred an Original Petition claiming benefits under the City Tenants Protection Act. The learned District Munsif dismissed both the O. P., as well as the suit and directed fie plaintiff to file a suit for possession of the tear portion of the property. The possession of fie suit properly by the defendant after the expiry of the lease period in so far as the front portion is concerned is unlawful. As far as the rear portion is concerned, the defendant is only a trespasser. The defendant who has spent only Rs. 3,000.00 for putting up the superstructure has made a claim of Rs. 7,000.00 for fie same. The plaintiff is entitled to adjust the tent at the rate of Rs. 65.00 per month from from 15-11-1968 to 15-11-1973. The front portion, (leased, would fetch not less than Rs. 200.00per month. The plaintiff is entitled for damages for use and occupation at that rate and she restricts her claim for three years. Hence the suit for declaring the title to the suit property in favour of the plaintiff and directing the defendant to deliver possession and pay damages of Rs. 7,200.00 and also pay future damages.

(3.) The defendant resisted the suit contending as follows : The defendant and Subramaniam entered into an agreement with the lessor Subramaniam on 15-11-1968 is admitted. The partner of the defendant had executed a release deed in favour of the defendant on 29-7-1969 and he has no right. the allegation that the said Subramaniam and the defendant put up construction at a cost of Is. 3,000.00 is not correct. The defendant has put up the construction at his own cost spending Rs. 7,000.00. The sale in favour of the plaintiff is not bona fide and not for a valid consideration.The notice issued by the plaintiff has been suitably replied. The plaintiff has Serf the suit O. S. No. 90/1974 for delivery of possession of the front portion of the suit property and the said suit was dismissed. On rename cause of action, the present suit has :c been filed by the plaintiff. The suit is therefore not maintainable. The claim for beery of possession and damages at the rate Rs. 200.00 per month is not sustainable. The action that the possession of the defends unlawful in so far as the front portion is is not true. The suit is barred by the pensions of Order 9, Rule 9 of the Code of nil Procedure.